RENDERED : MARCH 18, 2010
TO BE PUBLISHED
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2007-SC-000278-MR
2007-SC-000853-MR
KELLY MARQUETTE STEWART
ON APPEAL FROM FAYETTE CIRCUIT COURT
V HONORABLE PAMELA R . GOODWINE, JUDGE
NO. 06-CR-01658
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE CUNNINGHAM
AFFIRMING IN PART AND VACATING IN PART
On October 6, 2006, Sergeant Clay Combs of the Lexington Fayette
County Metro Police Department pulled over a truck being driven by Appellant,
Kelly Marquette Stewart, for improper traffic signals and failure to illuminate
the license plate. When Combs asked to see Appellant's operator's license,
Stewart presented a suspended driver's license in the name of Terry L. Jones.
Combs arrested Stewart for driving on a suspended license and conducted a
search of the truck incident to the arrest. Combs located a bag of cocaine, a
bag of marijuana, and a small digital scale in the vehicle .
Stewart was taken to the Fayette County Detention Center where it was
determined that, although he had presented another person's driver's license to
the officer, his own operator's license was valid. Accordingly, the charge of
driving on a suspended license was dropped and he was rearrested on the
charge of representing another's operator's license as his own . Prior to an
intake search of Stewart's person, he expressly denied possessing any
contraband . However, a small bag of crack cocaine was found in his right pant
leg during the intake search .
Stewart was ultimately tried by a jury and found guilty of possession of a
controlled substance (first degree)' ; promoting contraband (first degree) ;
possession of drug paraphernalia (second or subsequent offense) ; possession of
marijuana; giving a police officer a false name; representing as one's own
another's operator's license ; improper signal; and failure to illuminate a license
plate . Stewart was also found guilty of being a persistent felony offender in the
first degree . The jury's recommended sentence of five years for the possession
of a controlled substance charge was enhanced to twenty years by virtue of his
persistent felon status . He now appeals the convictions as a matter of right.
Ky. Const. § 110(2)(b) .
Double Jeopardy
Stewart first argues his convictions for both possession of a controlled
substance and promoting contraband violate principles of double jeopardy .
The issue was not preserved. This Court continues to consider appellate
claims of double jeopardy despite inadequate preservation . Clark v.
i The Amended Final Judgment, entered April 6, 2007 in the Fayette Circuit Court, states
that Appellant was found guilty of First-Degree Trafficking in a Controlled Substance;
however, Appellant was found guilty of First-Degree Possession of a Controlled Substance
under Jury Instruction No. 3 .
Commonwealth, 267 S .W.3d 668, 674-75 (Ky. 2008) . See also Baker v.
Commonwealth, 922 S.W .2d 371, 374 (Ky. 1996) .
"The applicable rule is that, where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other does not ." Blockburger
v. United States, 284 U.S. 299, 304 (1932) ; KRS 505 .020(2)(a) . In applying the
Blockburger test, the focus is on the proof necessary to prove the statutory
elements of each offense rather than on the actual evidence which would be
presented at trial. Mack v. Commonwealth, 136 S .W.3d 434, 438 (Ky. 2004) .
Stewart was convicted of promoting contraband pursuant to KRS
520 .050(1)(a) : "A person is guilty of promoting contraband in the first degree
when he knowingly introduces dangerous contraband into a detention facility
or a penitentiary ." He was also convicted of possession of cocaine pursuant to
KRS 218A. 1415(l) : "A person is guilty of possession of a controlled substance
in the first degree when he knowingly and unlawfully possesses . . . a narcotic
drug."
Possession of a controlled substance does not require proof of an
additional fact that promoting contraband does. Implicit in the requirement
that the defendant "knowingly introduces" contraband is the defendant's
possession of that contraband. "Promoting contraband in the first degree
requires possession of dangerous contraband . . . ." Tyler v. Commonwealth,
805 S .W.2d 126, 127 (Ky. 1991) . See also Hampton v. Commonwealth, 231
S.W .3d 740, 751 (Ky. 2007) (proof that defendant "knowingly possessed"
contraband at time he was taken to jail considered circumstantial evidence
that he "knowingly introduced" the contraband for purposes of KRS 520 .050) .
Nonetheless, the Commonwealth argues that no double jeopardy
violation occurred in this case because the possession and promotion
convictions were based on two separate quantities of cocaine. Indeed, the
Commonwealth argued at trial that the charges were based on distinct
quantities of cocaine, and each quantity was introduced as a separate exhibit.
The larger bag of cocaine was found in Stewart's vehicle, while the smaller bag
was found hidden in his pant leg following his arrest .
Continued possession of contraband is a single course of conduct that
gives rise to .a single offense . See Fulcher v. Commonwealth, 149 S.W .3d 363,
376 (Ky. 2004) (approving other jurisdictions' conclusion that "uninterrupted
possession of the same contraband over a period of time is but one offense
constituting a continuing course of conduct, precluding convictions of multiple
offenses for possession of the same contraband on different dates") . See also
Henry v. Commonwealth, 275 S.W.3d 194, 202 (Ky. 2008) . However, KRS
505 .020(1) (c) provides that separate convictions for possession may arise when
the continued possession has been interrupted by the "legal process." "`Legal
process' would include an arrest warrant, an indictment, or an arraignment."
149 S .W.3d at 377 .
A quantity of cocaine was discovered in a small bag in the vehicle before
Stewart arrived at the detention facility. A second quantity of cocaine was
ultimately found on his person following his arrest. His arrest constitutes
"legal process" such as to interrupt his possession of cocaine; and his
continued concealment of the second quantity once he arrived at the detention
facility - and after specifically denying any additional contraband - constitutes
a second, distinct offense . Accordingly, there was no double jeopardy violation.
Sufficiency of the Evidence : Persistent Felony Offender Conviction
Stewart next argues that the evidence was insufficient to support his
conviction of being a persistent felony offender in the first degree . He does not
challenge the validity of his prior convictions, but merely the Commonwealth's
explanation of one of the prior convictions to the jury. As part of its proof
during the PFO stage of the trial, the Commonwealth's Attorney was permitted
to read from court records . These records were introduced as exhibits, but not
published to the jury, due to prejudicial information contained therein. In
referring to the records, the Commonwealth's Attorney stated:
"In case number 00-CR-369 of the Fayette Circuit
Court [inaudible] the defendant Kelly M. Stewart
charged with trafficking in a controlled substance and
possession of drug paraphernalia first degree. Date of
offense was December 28th of 1999 . He was convicted
on June 13th of 2000 . He received a sentence of five
years probated for five years ."
Stewart argues this evidence was insufficient because the prosecutor did not
expressly state that he was convicted of both charges, only that he was
convicted on June 13, 2000. Stewart argues that it was unclear whether he
was convicted of one or both of these charges .
This issue is not preserved for appellate review and we review the claim
solely for palpable error. RCr 10.26; Schoenbachler v. Commonwealth, 95
S .W .3d 830, 836-37 (Ky. 2003) .
"[T]he standard of review required by the Due Process
Clause with respect to the sufficiency of the evidence
to support a criminal conviction . . . is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a
reasonable doubt."
Potts v. Commonwealth, 172 S .W.3d 345, 349 (Ky. 2005) (citing Jackson v.
Virginia, 443 U .S. 307, 318-19 (1979)) . Applying this standard, the evidence
here is sufficient to establish the fact of Stewart's prior felony conviction for
drug trafficking in 2000. When considered in context, the Commonwealth
Attorney's remarks are reasonably understood to mean that Stewart was
previously charged with trafficking in a controlled substance and possession of
drug paraphernalia and was convicted of both offenses . The prior judgment,
which was introduced as an exhibit, confirms this fact. It was not clearly
unreasonable for the jury to find Stewart was convicted of trafficking in a
controlled substance in 2000. Accordingly, there was no manifest injustice
warranting reversal . RCr 10 .26 .
Validity of Possession of Drug Paraphernalia (Second Offense) Conviction
Stewart's final allegation of error challenges the validity of his possession
of drug paraphernalia (second offense) conviction and, like the preceding
arguments, is unpreserved for appellate review. He first argues that there was
insufficient evidence to support the conviction, again asserting that the
Commonwealth's verbal explanation of the prior conviction to the jury was
inadequate. For the reasons set forth above, we conclude that the evidence,
when taken in the light most favorable to the Commonwealth, was sufficient to
support the conviction of possession of drug paraphernalia (second offense) .
Stewart also attacks the jury instructions with respect to the possession
of drug paraphernalia (second offense) conviction . He claims that the jury
instructions were infirm in that they did not require the jury to make a specific
finding of his intent or of his prior conviction . The guilt phase instruction
regarding the possession of drug paraphernalia charge read, in pertinent part:
You will find the Defendant, Kelly Stewart, guilty of
Possession of Drug Paraphernalia under this
Instruction if, and only if, you believe from the
evidence beyond a reasonable doubt all of the
following:
A . That in Fayette County on or about October 6,
2006 and within 12 months before the finding of the
Indictment herein, he possessed a set of digital scales;
AND
B . That when he did so, he knew the digital scales
would be used to measure or weigh cocaine.
There was no error in this instruction . Under the Commonwealth's
theory of the case, KRS 218A .500(2) required the jury to believe that Stewart
possessed the digital scales with the intent to use them "for the purpose of . . .
processing, preparing, testing, analyzing, packaging, repackaging, [or] storing
. . . a controlled substance ." The phrase, "knew that the digital scales would be
used to measure or weigh cocaine," sufficiently embodies the "possession with
intent to use" requirement of the statute. We also note that this portion of the
instruction is virtually identical to the specimen instruction recommended by
Cooper and Cetrulo, Kentuc Instructions to Juries, Criminal § 9 .34B (5th ed .
2007) . See Mitchell v. Commonwealth, 231 S .W.3d 809, 813 (Ky.App. 2007) .
Accordingly, there was no error in the guilt phase portion of the instruction .
The penalty phase instructions present a different problem . When a
prior misdemeanor conviction is used to enhance a subsequent offense to a
felony, as purportedly occurred here, the jury must make the finding with
respect to the prior conviction during the penalty phase . See Commonwealth v.
Ramsey, 920 S .W .2d 526, 528-29 (Ky. 1996) (construing DUI statutes) . Here,
however, the jury was never instructed to make a finding of guilt regarding
Stewart's previous conviction for possession of drug paraphernalia. Rather, the
penalty phase instructions simply required the jury to "fix the Defendant's
punishment at confinement in the penitentiary for not less than one (1) year
nor more than five (5) years, in your discretion ." There was the element of the
misdemeanor conviction missing from the instruction . Neither party asserts
that a stipulation as to Stewart's prior conviction was agreed upon, and our
review of the record reveals none .
While any error in jury instructions is presumptively prejudicial, we have
likewise acknowledged that such errors are subject to harmless error analysis,
though the Commonwealth bears the burden of this assertion . Harp v.
Commonwealth, 266 S .W .3d 813, 818 (Ky . 2008) . Here, the Commonwealth
argues that the error was harmless because the uncontroverted evidence
establishes that Stewart was previously convicted of possession of drug
paraphernalia in 2000 . An erroneous jury instruction that omits an essential
element of the offense is subject to the harmless error analysis. That test is
whether it appears "beyond a reasonable doubt that the error . . . did not
contribute to the verdict obtained." Neder v. United States, 527 U.S . 1, 2 (1999)
(quoting Chapman v. California, 386 U.S. 18, 24 (1967)) . However, harmless
error analysis is inappropriate in this case because the error is unpreserved .
As we explained in Martin v. Commonwealth, 207 S .W .3d 1, 5 (Ky . 2006) :
"[R]eviewing courts should endeavor to avoid mixing the concepts of palpable
error and harmless error . One is not the opposite of the other." The proper
inquiry, therefore, is whether the erroneous instruction at hand is a palpable
error under RCr 10.26.
We have recently been beset by numerous cases posing questions
concerning erroneous or defective jury instructions. More especially, we have
attempted to create the proper standard in applying the harmless and/or
palpable error analysis to these errant instructions .
In Commonwealth v. McCombs, No . 2007-SC-000127-DG, 2010 WL
(Ky., March 18, 2010), we deemed as harmless instructions wherein
the trial court did not submit to the jury the question as to whether a crowbar
was a dangerous instrument. In effect, the trial court held as a matter of law
that it was a dangerous instrument . However, the elements given were
consistent with the crime charged, i.e., that the burglary was committed with
threat of, or while armed with, a crowbar.
We held differently, however, in the cases of Carver v. Commonwealth,
No . 2007-SC-000428-MR, 2010 WL 274557 (Ky ., January 21, 2010) ; and
Sanders v. Commonwealth, No . 2008-SC-000118-MR, 2010 WL 254258 (Ky .,
January 21, 2010) . Carver resulted in a conviction for first-degree persistent
felony offender when one of the prior convictions in the instructions was, in
fact, a misdemeanor. In Sanders, the jury instruction allowed the crime of
possession of drug paraphernalia to be enhanced to a first-degree persistent
felony conviction when the statute specifically prohibits such use. We held the
instructions in those cases constituted palpable error because they allowed the
jury to find the defendants guilty under instructions which, on their face, did
not constitute the crimes charged.
We find this case falls more under the dictates of Carver and Sanders .
An essential element of the defendant being convicted of a prior misdemeanor
was missing from the instructions . With that missing element, under the
penalty phase instructions given, Appellant could have only been found guilty
of possession of drug paraphernalia (first offense) - a misdemeanor. See Varble
v. Commonwealth, 125 S .W.3d 246 (Ky. 2004) ; Cobb v. Commonwealth, 105
S .W .3d 455 (Ky. 2003) .
Therefore, with the exception herein noted, we affirm the underlying
convictions and the judgment and sentence as to the first-degree persistent
felony offender count, but vacate and remand the conviction for possession of
drug paraphernalia (second offense), for further proceedings, if any, consistent
with this opinion .
10
Minton, C .J . ; Abramson, Noble, Schroder and Venters, JJ ., concur.
Scott, J ., concurs in part and dissents in part by separate opinion.
SCOTT, J ., CONCURRING IN PART AND DISSENTING IN PART:
Although I concur on the other issues, I must respectfully dissent as to the
harmfulness of the drug paraphernalia instruction . Because the evidence of
Stewart's prior conviction of possession of drug paraphernalia is
uncontroverted and uncontrovertable, I believe the Commonwealth has
satisfied its burden of establishing that the instructional error was harmless .
"In a case such as this one, where a defendant did not, and apparently could
not, bring forth facts contesting the omitted element, answering the question
whether the jury verdict would have been the same absent the error does not
fundamentally undermine the purposes of the jury trial guarantee." Neder v.
U.S., 527 U.S . 1 (1999) . As, I believe the trial court's failure to instruct the jury
as to the element of Stewart's prior conviction was harmless, no manifest
injustice requiring reversal occurred . RCr 10 .26.
COUNSEL FOR APPELLANT:
Thomas More Ransdell
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Gregory C . Fuchs
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204